Out of court

Monday, February 22, 2010

How a Federal Indictment can spoil your day

Here in Seattle, federal prosecutors have a conviction rate that easily exceeds 90%.. In simple terms if you are indicted here in federal court, don't buy bulk at Costco.. Having defended people charged in federal court for the last 20 years, which means over 200 cases, I can count on two hands the number of people who have totally walked away from a federal indictment..

By that I mean cases that were dismissed outright such as through suppression of key evidence under the Fourth Amendment, or where a jury acquitted of all charges, or where the prosecution was convinced to dismiss a case.. In the latter category, the defendant typically had to go in, tell the prosecutors her story, and hope they believe her.. I use "her" deliberately, as the usual dismissed case is the spouse or girlfriend who lives with someone who may be growing large amounts of marijuana (say 150 plants) in their basement.. Their way out was to explain exactly how they had nothing to do with the grow operation..

This is not to say I have not gotten good results in many other cases.. I have worked out very favorable plea bargains, even down to misdemeanors with no time, in many cases.. It's just hard..

This 90%+ conviction rate is as it should be.. For when the federal government uses its bottomless resources to go after someone, they don't do it lightly or cheaply.. Federal prosecutors are well trained, highly qualified and make fearsome opponents.. They work hand in glove with federal agencies such as the FBI, DEA and ICE (Immigration and Customs Enforcement) BEFORE deciding to charge someone..

And they are generally circumspect about their awesome power. In other words, they don't indict people on thin evidence--very often.. I have seen bank robbery cases (usually federal cases, as banks are federally insured) sent to state prosecutors if there was a flaw in the case.. Given the powerful party (the U.S. government!)behind an indictment, it is a good thing they are loathe to indict on anything but very strong cases.. If not, a lot more people's days (if not lives) would be spoiled..

To be indicted for a felony in federal court, the prosecutor has to take the case to the grand jury.. A grand jury is composed of 23 people who hear witnesses who testify about the case.. Their standard is "probable cause" (explained in an earlier blog entry) and only a majority, 12 or more votes, are needed to indict.. The grand jurors, the prosecutor, and any other government agents present are sworn to secrecy.. The defendant is rarely asked to testify and even in fewer cases, will take up the offer.. The defendant's lawyer cannot appear before the grand jury.. This is the Constitutional check on the federal prosecutor's power..

Fraud cases are a growing area of federal prosecution.. In the 1980's a new crime evolved: "identity theft..." Sophisticated use of computers, skimmers (electronic devices that g lean the data from the magnetic strip on a credit or debit card) and just blatant theft of key numbers to bank accounts, credit cards, and the like aided this crime.. Basically the thief would gain access to this critical data, create new cards or bank accounts, and use it to withdraw money or to buy merchandise... Very often the thief would adopt the actual identity by using the victim's real name to get the money.. Early on, banks and credit card companies were quite naive--by mailing out information that could be stolen or not checking for picture id.. To this day, banks and credit card companies are still victimized by their own liberal policies regarding access to credit and cash.. I guess it's just a cost of doing business..

Identify theft cases tend to be overwhelming in the amount of evidence garnered against the perpetrators... Such evidence includes videotape from banks and stores (such as Walmart); seized computers with evidence of card making or confidential data; all the paper from these transactions; possession of id's, credit cards, ATM cards or skimmers; and eyewitnesses, including confederates who have become 'cooperating defendants..'

If people only knew how easy they were to prosecute, they might think twice about doing it..

But then I guess the 'easy money' is too tempting..

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